Citation NR: 9802505
Decision Date: 01/29/98 Archive Date: 02/03/98
DOCKET NO. 94-47 963 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased rating for a herniated
nucleus pulposus of L4-5, currently evaluated as 10 percent
disabling.
2. Entitlement to service connection for an acquired
psychiatric disorder, to include drug dependency, depression
and post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Marine Corps League
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. M. Cieplak, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1985 to
September 1986.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan, which denied entitlement to an increased
rating for a back condition and service connection for an
acquired psychiatric disorder, to include PTSD.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the 10 percent evaluation assigned
for his back condition is inadequate to reflect the extent of
his disability. He considers he should have at least a 20
percent evaluation pursuant to his consultation report from
March 1986. He also feels that he suffers from PTSD and
depression and that his drug abuse is related to his back
condition. He additionally maintains that a 10 percent
evaluation is not a level which has been designated under
38 C.F.R. § 4.71a, Diagnostic Code 5293. The representative
has requested that the case be remanded for a determination
as to the source of the veteran’s pain.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an evaluation in excess of
10 percent for a back condition and the veteran has not met
the initial burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim for service connection for a psychiatric disorder, to
include PTSD, depression and drug abuse, to include secondary
to a low back condition is well grounded.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claims has been developed by the RO.
2. The veteran’s service-connected low back disability is
not productive of more than slight limitation of motion of
the lumbar spine or more than mild intervertebral disc
syndrome.
3. A claim of entitlement to service connection for a
psychiatric condition, to include PTSD, depression, and drug
abuse, to include secondary to a back condition, is not
supported by cognizable evidence demonstrating that the claim
is plausible or capable of substantiation.
CONCLUSIONS OF LAW
1. The schedular criteria for a rating greater than 10
percent for a herniated nucleus pulposus of L4-5 have not
been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991);
38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic
Codes 5292, 5293 (1996).
2. The claim of entitlement to service connection for
psychiatric condition, to include PTSD, depression, and drug
abuse, to include secondary to a back condition is not well
grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Service medical records are silent as to pertinent symptoms,
findings or complaints of a psychiatric disorder. A CT exam
of the LS spine from March 1986 revealed a bulge at the L4-5
level. Minimal joint space narrowing was seen at the
apophyseal joints between the L5 and S1. No other osseous or
soft tissue abnormality was noted.
Following a post-service VA examination, an RO decision in
March 1987 granted service connection an a 10 percent rating
for a herniated nucleus pulposus.
Some years after military service, the veteran was
hospitalized on multiple occasions from 1989 to 1992,
primarily for substance abuse. Upon his release in February
1991 a depressive disorder, not otherwise specified, was
diagnosed. That diagnosis, nearly five years after his
military service, was the first indication of a psychiatric
disorder.
The veteran was admitted for treatment of depression and
substance abuse in 1991. The claims file contains medical
records from Elmhurst Home suggesting the veteran had a long-
standing history of substance abuse. The veteran was
experiencing difficulty in finding employment and gradually
became despondent. The veteran considers that his back
condition renders him unemployable. The veteran considered
that he had nothing to live for and that, as a person with a
bad back, no one would give him a job. Thus he felt that he
had post-traumatic stress disorder. In August 1992, a
diagnosis of substance abuse (cocaine, alcohol) was made
along with rule out organic mood disorder, rule out dysthymic
disorders.
In September 1992 the veteran was admitted and treated for an
adjustment disorder with depressed mood. He was seen on an
outpatient treatment basis through much of 1993. Notably, in
May 1993, treatment reports reflect how the veteran had not
worked since 1984. During the period between 1984 and 1993,
he had been involved in educational ventures as a means of
survival. Apparently, he would enter a training or academic
program in order to acquire a statement or a subsistence
allowance. The examiner commented that because of the
veteran’s fear about entering a true job situation, he
relegated himself to becoming an expert in attaining
financial assistance through enrolling in special programs
leading to more training and education, e.g. VA vocational
rehabilitation.
The veteran was afforded a VA examination in March 1993.
X-rays of the lumbar spine were basically within normal
limits. CAT scan reports were reported as normal with nerve
roots being grossly unaffected. The veteran complained of
lumbar pain with radiculopathy. No objective evidence of
pain on range of motion was demonstrated. There was no
evidence of muscle spasm. Range of motion of the lumbar
spine was reported as follows: Flexion was 105 degrees,
extension was 40 degrees, lateroflexion was 40 degrees
bilaterally, and rotation was 60 degrees bilaterally.
A September 1993 VA examination noted a conflict in the CAT
scans of January 30, 1991, and that of 3/25/86. The first
one showed a bulging disc extending to the neural foramina
and the most recent one showed the bulging disc but no
herniated disc. No EMG was available to confirm the
veteran’s sciatica. The examiner noted that a bad back might
cause some depression. According to the examiner, cocaine
abuse/addiction was not considered the usual result of back
pain
In November 1993, the veteran was afforded a VA psychiatric
examination. Objectively, the veteran was alert, well
developed and well nourished. He was normally oriented and
could recall 3 of 3 objects immediately and after several
minutes. Diagnosis on Axis I was depression, not otherwise
specified. The examiner offered the opinion that there was
no connection between the veteran’s back condition, and the
reported depression and drug abuse, except that they have a
common origin. In the examiner’s opinion, the condition of
the drug abuse itself was far more likely the cause of the
veteran’s depression. There is no competent medical
diagnosis of PTSD which is of record.
The veteran was afforded a VA compensation examination in
April 1997. He gave a history of being employed by the
Social Security Administration as a customer service
representative. He reported complaints of pain in the lower
back along with headaches. He contended bending over and
lifting were not possible. He registered no complaints about
his legs. Objective findings were that the veteran had
normal equilibrium and that he could tiptoe. The veteran
complained of depression and reported a history of substance
abuse. Examination of the lumbosacral spine showed no
postural abnormality, scoliosis, kyphosis, or fixed
deformity. Musculature of the lower back showed good muscle
tone without any spasm or atrophy. Range of motion revealed
forward flexion of 65 degrees, backward extension to 30
degrees, right and left lateroflexion 30 degrees, right and
left lateral rotation 35 degrees. No objective evidence of
pain on motion was demonstrated. Both lower limbs were
negative for any neurological deficiency. Straight leg
raising was 70 degrees with complaint of back pain.
Lasegue’s test was negative on both sides. Sacroiliac strain
was not painful. Diagnostic studies included X-rays of the
lumbosacral spine which were reported as normal. No
arthritis was appreciated. EMG and nerve conduction studies
of both lower extremities were reported as normal. The
examiner offered the opinion that the veteran’s chronic
strain of his lower back is not limiting the veteran’s
functional ability during normal condition or “flare-ups.”
From an orthopedic point of view, the examiner could not find
any objective evidence for any functional loss of use of his
lower back.
Analysis
I. Increased rating for back condition
The Board notes that the veteran’s claim for increased
evaluation is well grounded within the meaning of 38 U.S.C.A.
§ 5107. A claim that a condition has become more severe is
well grounded where the condition was previously service
connected and rated, and the claimant subsequently asserts
that a higher rating is justified due to an increase in
severity since the original rating. Caffrey v. Brown, 6 Vet.
App. 377, 381 (1984). The appellant requests that the case
be remanded to determine the source of the veteran’s pain.
However, the Board finds that the record is fully adequate
for rating purposes and is satisfied that all relevant and
available facts have been properly developed and presented;
no further assistance to the veteran is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107.
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1996), and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran’s service-
connected disability. The Board has found nothing in
historical record which would lead to the conclusion that the
current evidence of record is inadequate for rating purposes.
The Board is of the opinion that the case presents no
evidentiary considerations, except as set forth herein, which
would warrant an exposition of the more remote clinical
history and findings pertaining to the disability at issue.
Disability evaluations are administered under the Schedule
for Rating Disabilities which is designed to compensate a
veteran for reductions in earning capacity as a result of
injury or disease sustained as a result of or incidental to
military service. See 38 U.S.C.A. § 1155, Bierman v. Brown,
6 Vet. App. 125, 129 (1994). In evaluating a disability, the
VA is required to consider the functional impairment caused
by the specific disability. 38 C.F.R. § 4.10 (1996). Each
disability must be evaluated in light of the medical and
employment history and from the point of view of the
veteran’s working or seeking work. See Schafrath v.
Derwinski, supra.
The veteran’s service-connected chronic low back disability
has been evaluated as 10 percent disabling under 38 C.F.R.
§ 4.71a, Diagnostic Code 5293 (1996). Diagnostic Code 5293
provides that a 10 percent evaluation may be assigned for
mild intervertebral disc syndrome, and a 20 percent
evaluation may be assigned for moderate recurring attacks of
intervertebral disc syndrome.
Diagnostic Code 5295 provides that a 10 percent evaluation
may be assigned for lumbosacral strain with characteristic
pain on motion, and a 20 percent evaluation may be assigned
for lumbosacral strain where there is muscle spasm on extreme
forward bending, or loss of lateral spine motion,
unilaterally, when standing. Diagnostic Code 5292 provides
that a 10 percent evaluation may be assigned for slight
limitation of motion, and a 20 percent evaluation may be
assigned for moderate limitation of motion.
The Board finds that the criteria for a disability evaluation
in excess of 10 percent for the veteran’s chronic low back
disability have not been met. Although the veteran complains
of pain, the objective evidence of record reflects that his
low back disability is not productive of more than slight
limitation of motion of the lumbar spine. There is no
evidence of degenerative arthritis or listing of the spine or
marked limitation of forward bending, and no evidence
otherwise warranting a higher evaluation. The medical
evidence dated in recent years does not show an absent ankle
jerk, persistent muscle spasms, or neurological symptoms
consistent with more than mild intervertebral disc syndrome.
It is pertinent to note that the most recent VA compensation
examination in April 1997 found that both lower extremities
were negative for any neurological deficiency. EMG and nerve
conduction studies of both lower extremities at that time
were reported as normal. It is also relevant to note that
the examiner offered the opinion that the veteran’s chronic
strain of his lower back is not limiting his functional
ability during normal condition or during “flare-ups” and,
from an orthopedic point of view, the examiner could not find
any objective evidence for any functional loss of use of the
veteran’s lower back.
Further, the Board finds that the evidence does not reveal
any additional functional loss due to pain, weakened motion,
excess fatigability, or incoordination or as would be
required by 38 C.F.R. §§ 4.40, 4.45, 4.59 (1996), noting that
the competent evidence reflects that there is no objective
evidence of pain when attaining full range of motion. In
light of the foregoing the Board finds that the preponderance
of the evidence is against an evaluation greater than 10
percent for the veteran’s low back disability.
The Board notes the absence of unusual or exceptional
disability factors warranting consideration of a higher
rating on an extraschedular basis. In this case the veteran
has more than a high school education. During the pendency
of the appeal he has pursued additional education and
training. Psychotherapy notes reflect that the veteran had
achieved a “permanent student” status with which he was much
more comfortable than working. Moreover, the veteran is
currently employed on a full-time basis. Thus, the Board
does not find that the case presents an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards. Therefore,
a referral for consideration of an extraschedular evaluation
under the provisions of 38 C.F.R. § 3.321(b) is not
indicated.
II. Service connection for a psychiatric disorder, to
include drug abuse, depression, and post-traumatic stress
disorder, to include as secondary to the veteran’s service-
connected back condition.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303. In
addition, if a condition noted during service is not shown to
be chronic, then generally continuity of symptoms after
service is required for service connection. 38 C.F.R.
§ 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(d)
is applicable where evidence, regardless of its date, shows
that a veteran had a chronic condition in service or during
an applicable presumptive period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the Court’s case law lay
observation is competent. If the chronicity provision is not
applicable, a claim may still be well grounded or reopened on
the basis of 38 C.F.R. § 3.303(b) if the condition is
observed during service or any applicable presumption,
continuity of symptomatology is demonstrated thereafter, and
competent evidence relates the present condition to that
symptomatology. Savage v. Gober, No. 94-503 (U.S. Vet. App.
Nov. 5, 1997).
The threshold question which must be answered in this case is
whether the veteran has presented a well grounded claim for
service connection. A well grounded claim is a plausible
claim, one which is meritorious on its own or capable of
substantiation. In this regard the veteran has “the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded.” 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet.
App. 136, 140 (1994).
To establish that a claim for service connection is well
grounded, the veteran must demonstrate the incurrence or
aggravation of a disease or injury in service, the existence
of a current disability, and a nexus between the inservice
injury or disease and the current disability. Medical
evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement. Lay or
medical evidence as appropriate, may be used to substantiate
service incurrence. See Caluza v. Brown, 7 Vet. App. 498,
506 (1995).
Initially, the Board notes that effective for claims filed
after October 31, 1990, the VA is prohibited from paying
compensation for a disability as a result of a veteran’s own
alcohol or drug abuse. The payment of compensation is
prohibited where the claim is based on direct service
connection or, under 38 C.F.R. § 3.310(a), when a secondary
service connection of a disability proximately due to or a
result of a service-connected condition. Further,
compensation is prohibited regardless of whether compensation
is claimed on the basis that a service-connected disease or
injury caused the disability or on the basis that a service-
connected disease or injury aggravated the disability.
Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-
508, Section 8052, 104 Stat 1388, 1388-351, VAOPGCPREC 2-97.
Accordingly, the claim for substance abuse secondary to a
service-connected disability must be denied because of a lack
of entitlement under the law. See Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994).
The Board further finds that the veteran has failed to
provide competent evidence showing a nexus between any
current psychiatric condition and his service. The evidence
of record shows that the first indication of a psychiatric
disorder is dated in 1991, approximately five years after
separation from service. Furthermore, the claims folder does
not contain medical evidence that shows that the veteran’s
psychiatric disorders are the result of any disease or injury
incurred in service. Rather, the record demonstrates that
his psychiatric disorders are attributable to his substance
abuse. The Board notes that there is no medical evidence of
record to show that the veteran has a diagnosis of PTSD or
medical evidence of a link between the claimed PTSD and
service. Accordingly, the veteran’s claim for service
connection for a psychiatric disorder, to include secondary
to his service-connected back condition is not well grounded.
The only evidence suggesting that there is a nexus between
the veteran’s psychiatric conditions and his service are the
theories presented by the veteran himself. In this regard,
the Board has reviewed and considered the veteran’s testimony
at his several hearings along with the various statements
that he has submitted. The Board notes that lay testimony is
not competent to prove a matter requiring medical expertise,
such as a diagnosis or opinion as to medical causation. See
Espiritu v. Derwinski, 2 Vet. App. 494, 494-495 (1992).
Although the veteran’s statements and testimony represent
evidence of continuity of symptomatology, they are not
competent evidence that relates his present conditions to
that symptomatology and, under the circumstances, the claims
are not well grounded. Savage, supra. Accordingly, the
veteran’s claim for service connection for a psychiatric
condition, to include secondary to his service-connected
disability must be denied as not well grounded.
In denying his claim as not well grounded, the Board
acknowledges that it has considered and denied his appeal on
a ground different from that of the RO. However, the
appellant has not been prejudiced by this decision. That is
because in assuming that the claims were well grounded, the
Board accorded the claimant greater consideration than his
claim in fact warranted under the circumstances. Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993). To remand his claim
to the RO for consideration of the issue of whether or not
the claim was well grounded would be pointless and, in light
of the law cited above, would not result in determinations
favorable to the veteran. VAOPGCPREC 16-92 (OGC Brac 16-92);
57 Fed. Reg. 49, 747 (1992). Further, the United States
Court of Veterans Appeals has held that “when an RO does not
specifically address the question whether a claim is well
grounded or rather, as here, proceeds to adjudication on the
merits, there is no prejudice to the veteran solely from the
admission of the well-grounded analysis.” Myer v. Brown,
9 Vet. App. 425, 432 (1996).
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to submit well grounded
claims for service connection for the claimed disabilities,
and the reasons why his current claims are inadequate. See
Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995).
ORDER
Entitlement to an increased rating for a low back condition
is denied.
Entitlement to service connection for a psychiatric
condition, to include substance abuse, depression, PTSD, to
include as secondary to a service-connected disability is
denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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